The “No Risk” v. “Low Risk” Conundrum For Juvenile Sex Offenders

In re T.J.D., 2017 IL App (5th) 170133 (November). Episode 449 (Duration 11:39)

Petitioner has to prove he poses “no risk” to reoffend even though evaluators never go beyond a “low risk” assessment.

Juvenile Sex Probation

The court entered an adjudication and disposition order on April 14, 2011, which required respondent to register as a juvenile sex offender under the Act. 730 ILCS 150/3-5.

Respondent was also placed on probation for five years and home electronic monitoring for 12 months. Respondent registered as a juvenile sex offender. Respondent was discharged from probation and subsequently filed filed a petition to terminate his sexual offender registration pursuant to section 3-5(d) of the Act. 730 ILCS 150/3-5(d).

Minor May Terminate Registration

Under this section of the Act, a court may terminate the registration of an adjudicated juvenile delinquent if he or she shows, by a preponderance of the evidence, that he or she “poses no risk to the community.” 730 ILCS 150/3-5(d).

In support of respondent’s contention that he posed no risk to the community, respondent asserted that he had completed a current risk assessment, which

recommends he be removed from registration
he successfully completed individual sex offender treatment
his sexual offender history and recommendations from counselors indicate he is a low risk and
requires no supervision or restrictions
he has resided and attended school in the community without any incidents; and
the continued requirement of registration presents an undue burden.

Sex Offender Registration Act Section 3-5(d)

The relevant section of SORA provides:

“(d) The court may upon a hearing on the petition for termination of registration, terminate registration if the court finds that the registrant poses no risk to the community by a preponderance of the evidence based upon the factors set forth in subsection (e). ***

(e) To determine whether a registrant poses a risk to the community as required by subsection (d), the court shall consider the following factors:

(1) a risk assessment performed by an evaluator licensed under the Sex Offender Evaluation and Treatment Provider Act [(225 ILCS 109/1 et seq. (West 2014))];
(2) the sex offender history of the adjudicated juvenile delinquent;
(3) evidence of the adjudicated juvenile delinquent’s rehabilitation;
(4) the age of the adjudicated juvenile delinquent at the time of the offense;
(5) information related to the adjudicated juvenile delinquent’s mental, physical, educational, and social history;
(6) victim impact statements; and
(7) any other factors deemed relevant by the court.

(f) At the hearing set forth in subsections (c) and (d), a registrant shall be represented by counsel and may present a risk assessment conducted by an evaluator who is licensed under the Sex Offender Evaluation and Treatment Provider Act.”

730 ILCS 150/3-5(d), (e), (f) (West 2014).

Psychosexual Risk Assessment & Evaluation

Attached to respondent’s petition was a psychosexual risk assessment and evaluation prepared by Linda Stover, a licensed sex offender evaluator.

Based on her review of records, clinical interviews, written assessments, and stable and acute risk factors, Stover concluded that respondent should be considered a low risk to the community.

Stover opined that respondent had demonstrated he can live an offense-free life and should be given the opportunity to continue his life without having to register as a sex offender. Stover further stated that respondent had completed everything the court asked of him, he assumes full responsibility for his actions, and he “is very remorseful for all of it.” Stover strongly recommended that respondent be removed from the registration law.

The State’s Evaluator

The State’s own evaluator stated that respondent had participated in both residential and outpatient sex offense specific treatment and that he successfully completed the treatment with highly positive reports from his treatment providers. Adkerson opined that respondent had demonstrated a number of strengths in dynamic risk areas and had shown patterns of behavior associated with decreased risk for sexual offense recidivism. Adkerson found the risk of respondent’s recidivism to be very low.

Regarding registry removal requirements in Illinois, Adkerson opined:

“Illinois requires a finding that the individual pose no risk to the community to be appropriate for registry removal, which presumably would be a risk level equivalent to community members at large. A finding of no risk is not possible, as some risk for sexual offense exists even among the general population for whom no prior sexual offenses have been identified.”

In sum, Adkerson recommended that respondent be released from his sex offender registry requirements because there “is every reason to believe” respondent would not reoffend, and because remaining on the sex offender registry creates risk of destabilization in housing and employment which in turn undermines best functioning.

The Trial Judge

The court called the factual basis underlying the adjudication both “disturbing and disgusting” and observed that both of respondent’s victims were between two and four years old at the time the offenses were committed.

The court found the evidence clearly demonstrated respondent gained the trust of the victims and the victims’ parents, and after doing so, respondent repeatedly molested the children over a period of months until he “grew bored.” The court noted that respondent chose L.B., one of the victims, because “he could get away with it and she would be easy.”

The court further concluded that respondent’s testimony lacked credibility.

The court found there were inconsistencies regarding respondent’s testimony, which were not explained to the court’s satisfaction, and observed respondent’s manner and tone to be “well-rehearsed” and “less than forthright.

In its conclusion, the court stated, in relevant part:

“[T]he Court finds [respondent] has failed to prove by a preponderance of the evidence that he poses ‘no risk’ to the community. Both experts found him to be low risk. The Court is unwilling to give that statutory direction a lesser meaning. The Legislature chose to make the standard ‘no risk.’ Low risk is not the same as no risk. The Court finds by a preponderance of the evidence that [respondent] is a low risk to the community; however, that does not meet the standard set out in 730 ILCS 150 3/5. Based on the evidence presented, the Court cannot find the burden to prove he is no risk to the community has been met.”

Issue

Turning to the merits, respondent argues the “no risk” requirement under section 3-5(d) of the Act—which, if proven by a preponderance of the evidence, permits a court to terminate an individual’s sexual offender registration—creates an impossible burden to obtain and renders this statutory provision meaningless.

Respondent requests that this court reverse and remand this cause with directions regarding the reasonableness of “no risk” under section 3-5(d).

Analysis

In support of his argument, respondent asserts that experts in the field of sex offender treatment will never make a formal finding lower than “low risk.

Respondent contends it is irrational that a court must make a finding of “no risk” in order to terminate sexual offender registration, but must consider a risk assessment performed by a licensed evaluator pursuant to section 3-5(e) of the Act which will not label a petition lower than “low risk.” Respondent further argues the legislative history indicates the court was intended to have discretion in determining whether to grant a petition to terminate sexual offender registration, and the plain language of the statute has stripped the court of that discretion.

After careful consideration, we do not find the statutory language at issue to be ambiguous. Section 3-5(d) clearly requires the court to make a finding, by a preponderance of the evidence, that the applicant poses “no risk” to the community. 730 ILCS 150/3-5(d). Here, we find nothing which suggests “no risk” within the meaning of section 3-5(d) is ambiguous or absurd.

Further, contrary to respondent’s assertion, we do not find this provision creates an impossible burden for respondent to obtain. To obtain relief, the legislature adopted a preponderance of the evidence as the burden of proof. Our supreme court has defined a preponderance of the evidence as that evidence which renders a fact more likely than not. After careful consideration, we find this burden is not unreasonable or impossible to satisfy. If the statute employed an “impossible burden” as respondent suggests, it would be a much heavier burden of proof such as beyond a reasonable doubt or clear and convincing evidence.

By adopting a preponderance of the evidence as the burden of proof, the legislature afforded petitioners the opportunity to prove they pose “no risk” to the community.

Holding

In this case, the court, after considering the factors outlined in section 3-5(e) of the Act (which included the evaluations concluding respondent was a low risk to the community), simply determined respondent failed to meet that burden. It is clear that the burden of proof adopted by the legislature is not unreasonable or unattainable.

In sum, we do not find that the “no risk” requirement under section 3-5(d) creates an impossible burden. Although we agree the statute creates a very high burden on respondent, a showing of “no risk,” while under limited circumstances, is not unreasonable or impossible to obtain. It was possible for respondent to prove he posed no risk to the community by a preponderance of the evidence.

We further note that the offenses committed by respondent are a far cry from the “less serious sex offenses” section 3-5 is intended to protect. For these reasons, we reject respondent’s argument.

In light of the foregoing, we cannot say that the trial court’s decision denying respondent’s petition was against the manifest weight of the evidence. As a reviewing court, we will not reverse a trial court’s decision simply because we might have reached a different conclusion based on conflicting evidence. Here, although we may have weighed the evidence differently, we cannot say the court’s judgment was unreasonable, arbitrary, or not based on the evidence.

Legislative Act Required

Accordingly, we reject respondent’s argument. In sum, we conclude that section 3-5(d) of the Act clearly requires an individual to prove he poses “no risk” to the community by a preponderance of the evidence in order to permit a court to terminate his or her sexual offender registration. This is not an impossible burden to obtain. However, considering that medical experts refuse to label an offender as “no risk” (the lowest recognized category by the treatment providers in this case was “low risk” or “lowest possible risk”), we encourage the legislature to reconsider that standard. We further conclude that the court’s decision denying respondent’s petition was not against the manifest weight of the evidence. For these reasons, we affirm the order of the circuit court of Williamson County, denying respondent’s petition to terminate his sexual offender registration.

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